Cold-blooded law heats up cultural war

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Victims' needs are sidelined as those with power quibble over
ethics and loopholes, writes Paul Sheehan

Our Frankenstein criminal justice system is engaged in a
cultural war with the society it has failed.

As The Sun-Herald reported yesterday, the NSW Rape Crisis
Centre has been "inundated" with calls over the past 18 months and
the overwhelming majority of the distressed young women who made
the calls are not going to lodge formal complaints to the police.
Why should they? They know the legal system will humiliate them
again.

Today, statistics will be released showing an increase in rapes
and gang rapes in Sydney. This should come as no surprise. Despite
a handful of high-profile trials resulting in long sentences, most
women know that most sexual assaults go unreported, that most of
those that are reported are not investigated, and that most of the
tiny minority of cases that are prosecuted fail in court.

Last week, the case against two convicted gang rapists, Bilal
and Mohammed Skaf, was suspended indefinitely because the victim,
who had broken down several times while giving testimony in the
trial, said she could not endure a retrial. The trial and
conviction had been quashed by three judges, Keith Mason, James
Wood and Brian Sully, because two jurors had made an unauthorised
visit to the crime scene.

The erosion of the credibility of the criminal justice system
isn't going to stop. The mother of a rape victim whose trial is
supposedly pending told me on Saturday that her daughter had lost
the will to fight. Last week's debacle over the Skaf mistrial did
not help.

"It affected us," the girl's mother said. "We're all up in the
air. I'm frazzled. She's still saying she's doesn't want to go [to
trial]. I just don't know."

They are fragile because their trial has been delayed repeatedly
by judges concerned about the public furore over rape trials.
Another mother of another rape victim told me: "I am sick and tired
of the rapists and the legal profession - defence lawyers and
judges - using media coverage as an excuse to delay trials,
prolonging the wait for the victim."

This cycle is not going to be broken. The media's coverage is
going to become more cynical, more caustic and more hostile. The
headlines of the past 72 hours encapsulate the mood: "No
justice" ... "The courts crush another rape victim" ...
"Shame on system - not the victim" ... "Gang rape pair
avoid new trial" ... "Reform must be immediate to protect
rape victims" ... "Inside victim's private hell" ...

More debacles are in the pipeline. An armed security guard who
while doing her job was viciously beaten by a career criminal is
facing trial for murder. A taxi driver who was doing his job,
carrying passengers, was attacked after his cab was forced off the
road by a car-load of hoons and is facing trial for murder. Each
case or aborted case is likely to further expose and widen the gulf
between the values and expectations of the community and those of
the courts.

Who could forget last year's mistrial, when Justices Mason and
Wood quashed the conviction of an accused gang rapist because the
trial was scheduled directly after the trial of his co-accused
gang-rapists. This was deemed to be fatal to the procedural
fairness of the trial. It was all about publicity, about which the
judges have become phobic and controlling. It also reflected a
fundamental lack of faith in the capacity of jurors to focus on the
case at hand.

This case is still dribbling through the system. A million
dollars wasted. Another year lost. Another victim in purgatory.

To be fair to Justices Mason and Wood, they delivered a superb
judgement in another gang-rape trial on September 6 last year, in
upholding a guilty verdict against two rapists. In the process,
they delivered a humiliating dismantling of a tantrum by their
brother judge, Brian Sully. In his original judgement at the trial,
Sully had lambasted the NSW Parliament for having the temerity to
rush through a law preventing rapists, representing themselves,
from interrogating the victim. Sully seemed to invite an appeal on
these grounds and the two rapists took him up on it. The argument
was crushed by Justices Mason, Wood and Graham Barr.

Another mistrial was declared in May last year when Mason, Wood
and Sully, this time united, threw out the trial and verdict in
Crown v Bilal Skaf and Mohammed Skaf. That was last May.
Their decision came back to haunt them last week. The victim, known
as Ms D, can't go on. No retrial.

Ms D was gang-raped in a park at Greenacre on August 12, 2000,
when she was 16. She identified her principal assailants as Bilal
and Mohammed Skaf. She already knew one of them socially. She
correctly identified the other brother in a police line-up.
Abundant mobile phone records implicated the brothers. Two days
after the incident Mohammed Skaf sent Ms D a text message about the
assault. Forensic and other evidence implicated the brothers. A
passer-by who found Ms D crying at the scene saw a white van filled
with men driving off, corroborating Ms D's testimony. By the time
the appeal was heard, the judges knew that the Skaf brothers had
been convicted of gang-rape in another trial. They also knew Ms D
was in a fragile state. She had even said she could not endure
another trial.

Weighed against all this was a single incident and a matter of
principle. After the jury's first day of deliberations, the jury
foreman and another juror went to the crime site for 15-20 minutes
to examine the lighting. This indiscretion was not discovered until
18 months after the trial. In considering the seriousness of this
breach, the judges stated:

"The court finds that there must be a new trial unless the court
can be satisfied that the jurors' conduct has not affected the
verdict and the jury would have returned the same verdict if the
jurors had not visited the park. A key issue at Bilal Skaf's trial
was whether he was properly identified by Ms D as the man who first
sexually assaulted her and whether he was present when the second
[unidentified] man did so. The adequacy of the lighting at the park
was clearly relevant."

The judges were not able to determine that the visit to the park
had swayed the jury's deliberations. They did, however, want to set
an example over this breach of the trial judge's orders to jurors
not to seek evidence beyond that presented at the trial: "Whether
the jurors' conduct amounts to a contempt of court is not in issue
in this appeal. However, the court mentions it to indicate to other
jurors in other trials the potential seriousness with which the law
views this type of conduct."

The law!

Fourteen men participated in the rape of Ms D, and she will
never get justice. Re-reading this judgement over the weekend, it
seemed less like ethical rigour and more like intellectual
pettifogging.